The Supreme Court and Same Sex Marraige

The Supreme Court will begin to hear oral arguments today as to whether there is a “constitutional right” to same-sex “marriage.” For the first time in history, our nation faces a dizzying prospect—that its laws, its courts, and the coercive power of the state that upholds them, could be turned against supporters of the institution of marriage by judicial fiat.

This is not the first time that traditional marriage has been attacked at the Supreme Court level. But as the New York Times reported last week, it is the first time that top lawyers and top law firms have refused to file any briefs in support of marriage.

The New York Times suggests that one of the reasons why Big Law will not defend marriage is that some firms think that there are no good arguments against same-sex “marriage.” I wholeheartedly disagree. Although same-sex “marriage” masquerades as marriage, it cannot do the single most important thing that marriage does: create the stable foundation of relationships that serve as the building block of society.

We can see how same-sex “marriage” differs from marriage if we consider the most popular argument in favor of same-sex “marriage” the argument goes something like this: “denying marriage to same-sex couples is like the denial of service to patrons at a restaurant on the basis of race”. This is how the argument is expressed in the New York Times. It’s a brilliant rhetorical move because it quickly demonizes opponents of same-sex “marriage” by lumping them in with Klansmen. But it’s also a logically flawed move: it pretends that we are denying a group of people equal access to an institution, when in fact the members of that group have always been free to enter that institution, yet since they have no real interest in doing so, are now asking to create a new institution in its place.

My approach is to not argue against same sex marriage from a religious point of few, but to argue against same sex marriage from reason, logic, the common good and the natural law.

So let’s break the race argument down. In its basic form, it has five steps:

What we are born with is natural

We are born with race and a sexual orientation

What is natural is good

Race and sexual orientation are good

No one should be prevented from marrying based on what is good

Does it work? That depends on whether all the premises in the argument are true. Let’s take a look at the first premise: “What is natural is good.” Is that true? Well, it depends on what you mean by “natural.” There are three options:

First Option: Sometimes we say that things are natural when they happen according to the ordinary course of events.

In this case, “natural” is the opposite of “unusual or un-natural.” For example, according to the ordinary course of events, people are born with 46 chromosomes. That is natural. But not all people are born with 46 chromosomes. According to the Center for Disease Control approximately 0.15 percent of babies are born with 47 chromosomes, a condition known as Trisomy 21. That is unusual, unnatural. Likewise, according to the CDC approximately 1.6 percent of adults identify themselves as gay or lesbian. Assuming that all of them were born with sexual desires oriented towards members of the same sex (and that is a huge assumption, nowhere near a proven scientific fact), being born with sexual desires oriented towards members of the same sex is unusual, unnatural. So, if “natural” means “happens according to the ordinary course of events,” then the first premise is false: what we are born with is not always natural. Then the whole argument falls apart.

Second Option: Sometimes we say that things are natural when we receive them from our parents at conception, or when they come from what we receive from our parents at conception.

If that is what natural means, then “natural” is the opposite of “supernatural.” In this sense, it is natural to have two arms and two legs, because we receive two arms and two legs from our parents. Likewise, it is natural to walk, because eventually those two legs will develop into limbs capable of walking. By contrast, it is supernatural for a human being to have wings, because our parents don’t have wings; likewise, it is supernatural to fly without the help of machines, because if you don’t have wings, you can’t develop the power to fly. Skin color is natural in this sense—it follows directly from the skin color of our parents.

So let’s move on to our next premise, “what is natural is good.” That seems reasonable, because having two arms and two legs covered with skin is good, and so is walking with two legs. But if we think about it carefully enough, we run into a problem. Walking with legs covered in skin is natural, but so is stepping on someone’s face—if I have legs, those actions are both equally within my power. Eating a sandwich with my arms is natural, but so is punching someone with them. What we receive from our parents at conception puts a lot of power at our disposal due to our free will, but we can use that power and free will to do good or to do evil. So, if “natural” means “what we receive from our parents at conception or what develops from it,” then the second premise is false. What a person is born with is natural, but what is natural is not necessarily good—what we are born with is not good nor bad. What is good or bad is how we exercise our free will and what we choose do with what we are born with.

Third Option: Sometimes we say that things are natural when they make us healthy. In this sense, “natural” is the opposite of “unnatural.” This definition is the trickiest of all because health is not a measurable or quantifiable reality, like the ordinary course of events (which the CDC has quantified for us with regard to Trisomy 21 and same-sex attraction), or the observation of what lies within our power (which we can experience on a daily basis). According to the World Health Organization “Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.” And, while you can take people’s temperature and measure their blood pressure to see if they are free of disease or infirmity, you can’t quantify their well-being.

So if you can’t quantify health, how do you know if you have it? One way to tell if you have well-being would be to ask yourself if you feel like you have it. It’s a popular opinion, which is often used to support same-sex “marriage,” but there’s a problem with it: imagine that you’ve been un-healthy in some aspect of your life for a long time and you’ve never known any better? You’d make the mistake of assuming that your sickness was health—like an asthmatic assuming that their condition is natural and that everyone is supposed to wheeze, just because that is his or her experience of breathing.

So look beyond yourself at humanity throughout history. As a rule, people order themselves and their societies around four basic goods, which are required for human flourishing:

Self-Preservation

Having and Raising Children

Cultivating the Life of the Mind

Living in Society

Classical philosophy calls these four goods “natural goods” because if natural means “healthy,” then they are four things that humans tend to seek to maintain physical, mental, and social health. The only addition to the WHO definition of health is having and rearing children—which the WHO didn’t include because it was talking about the health of individuals, not the health of the human species and of society as a whole.

“Natural” Means Ordered toward Our Well-BeingWith that in mind, let’s get back to our first question: is what we are born with natural? If “natural” means “healthy” then what we are born with is natural if and only if it is ordered towards physical, mental, and social well-being. Let’s take skin color, for example. Skin color arises from the concentration of melanin in the epidermis, and is ordered to the natural good of self-preservation by absorbing UV radiation. To the extent that we have an appropriate amount of melanin in the epidermis to absorb UV radiation (which the vast majority of people do, no matter their skin color), then the skin color we are born with is “natural,” because it is well-ordered to physical health. If, however, we happen to suffer from some skin condition, such as albinism, whereby we lack a sufficient amount of melanin in our skin to absorb the UV radiation to which we are subjected in the course of ordinary life, our skin color is “unnatural,” because it was not well-ordered to physical health. Notice the words I just used to describe albinism: I said it was “unnatural,” or “not well-ordered,” but I never said that it was “bad.” That is because “good” and “bad” are words that apply only to actions. It is not good or bad to be albino; rather, people with albino skin can do good and bad things, just like everyone else.

The same is true of people who experience same-sex attraction. As we saw above, things we are born with are neither good nor bad. They simply are. Feelings we are born with do not bring us closer or farther away from health; actions do. That’s because there’s a big difference between tending to want to do something and actually doing it. For example, someone says something that makes you feel angry. You may not be able to do anything about feeling angry. But you do have a choice of what to do next—do you walk away, ask him for clarification, or punch him in the face? Walking away or asking for clarification may mean not giving voice to your anger, even though you feel it very strongly. But does that mean your only option is to punch him in the face? Hardly. You do not have to act on your feeling, and often times it’s better if you don’t. The same is true for sexual attraction. If someone comes into the room to whom you are sexually attracted, you don’t have to have intercourse with them whether physically or in your mind. You have lots of other options.

Even if feelings are neither good nor bad, we can call them “well-ordered” or “dis-ordered” depending on whether they tend to make us want to do things that are well-ordered towards physical, mental, and social health. Sexual attraction, like skin color, is usually ordered towards something healthy: having and raising children. To the extent that we experience the kind of sexual attraction necessary for the propagation of the human species (which, according to the CDC study I cited above, 98 percent of people do), our sexual attraction is well-ordered, because it makes us tend to want to do something that contributes to the health of the species. If, on the other hand we lack a sexual attraction that makes us tend to want to propagate the human species, it would be entirely appropriate to say that our sexual attraction was “disordered” or “unnatural” because it would not promote the health of the species. The Catholic Church teaches that homosexual acts are contrary to the natural law and intrinsically disorder. (Catechism of the Catholic Church 2357)

How Race and Sexual Orientation DifferThis is the point at which race and sexual orientation differ. If “natural” means “healthy,” and what is healthy tends towards self-preservation, having/raising children, cultivating the life of the mind, and living in society, then almost every skin color a person can be born with is natural, because it contributes to physical health, but same-sex attraction is unnatural, because it directs us away from the health of the species. So, if you follow the argument about marriage with regard to race, it is airtight in almost every case; if you try to follow it through with regard to same-sex attraction, it falls apart from the get go!

Be that as it may, having children is not merely a biological process. Biology 101 tells us that you can’t procreate by yourself. In order to procreate, you have to enter into a sexual act with a person of the opposite sex. Consequently, the act of procreation does not just transfer a sperm to an egg to create a zygote; it brings together two people into an embrace of one another. Moreover, when the sperm and the egg make a zygote, the newly conceived child is not an isolated cell-clump with no relationship to the world; he or she is defined by a series of relationships: to a mother first of all, from whom he or she draws nutrition and sustenance, to a father, and through them to the rest of the world: uncles, aunts, siblings, cousins, and so on. That means that the biological act of having children doesn’t just contribute to the health of the species; it also contributes to social health, because it establishes the fundamental foundation of relationships that constitute the building block of society. (Catechism of the Catholic Church 2207) So a well-ordered sexual attraction is not just about biology; it’s about society. It tends not only towards having children, but also towards raising them with the person you embraced to procreate them, and thereby to the creation of human society.

That is marriage. Marriage as I’ve set it forth is not something that some government or religion established, and so it’s not something that some government or religion can change. It’s something that people throughout history have discovered over and over again about the nature of health, of human persons, and of human society, just by looking reasonably beyond themselves, their feelings, and their situation. So let’s be clear about what the Supreme Court justices will be considering. The question before them is not whether people with same-sex attraction have a right to enter into the relationship that forms the building block of society. They are just as free as anyone else to enter into that relationship, and no one is saying otherwise. But then again, that would mean entering into a relationship with a person of the opposite sex, which for understandable reasons they may not wish to do.

Rather, the question before the Supreme Court is whether the government should institutionalize a different kind of relationship, which is founded upon a disordered feeling, which makes people tend to want to engage in acts that cannot result in procreation, which cannot create the network of relationships upon which society is founded, and so which is, in the truest sense of the word, “unnatural.” And the Supreme Court of the United States would do grave harm to American society if it tried to force such an unnatural institution upon us, and to pretend as though there were no difference between it and the original.